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Data Protection becomes a fundamental right in the Brazilian Constitution
Last Friday, February 10, Constitutional Amendment number 115 of 2022 was enacted, which includes the right to the protection of personal data among the rights guaranteed by the Federal Constitution. The amendment was the result of PEC No. 17/2019, which had been in Congress for a few years.
The constitutional amendment proposal emerged in 2019, after intense debate about the need to guarantee constitutional protection to a topic that, already that year, was gaining traction with the recent approval of LGPD, the General Law of Data Protection (Law No. 13,709/2018). As is well known, the LGPD brings several rights to data subjects and also a complex range of obligations to companies and organizations that wish to use such personal data.
The constitutional amendment bill gained momentum in 2021, being approved in the House of Representatives in August and in the Federal Senate in October.
In practical terms, the inclusion of this right among the fundamental rights guaranteed by the constitution, despite having no apparent direct impact on the operations of companies, means that the theme gains constitutional relevance, being elevated to a fundamental right for people located in Brazil. In fact, data protection becomes a permanent clause of the Constitution (which can no longer be modified), regulated as part of the right to life, liberty, equality, security and property. This is a clear indication of the importance that the theme has and will have in the country.
Moreover, the promulgation of such Constitutional Amendment has as its main role to raise the right to the protection of personal data to the status of constitutional guarantee, which not only enables its discussion before the Supreme Court, but may influence the importance of the subject in the understanding of the courts and the Brazilian law.
